Abstract:
The world population is predicted to increase substantially over the twenty-first century, with United Nations (UN) projections indicating that it will reach more than ten billion after 2200. If current trends continue, the world will come close to a number of potential tipping points where current ecosystems will struggle to provide essential services. UN Secretary General Ban-Ki Moon has said that “[t]he poor, who tend to be the most immediately dependent on [current ecosystems], would suffer first and most severely. At stake are the principal objectives outlined in the Millennium Development Goals: food security, poverty eradication and a healthier population.” Many believe that existing genetic resources will need to be developed to ensure that these problems can be managed. Developing countries are often the holders of these untapped genetic resources, and it is very important that these countries receive a fair share of the benefits from the use of their genetic resources and traditional knowledge.
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation (Nagoya Protocol) was adopted at the tenth meeting of the Conference of the Parties on 29 October 2010. The United Kingdom Environment Secretary Caroline Spelman has said that “[t]his agreement heralds a better deal for developing countries blessed with rich ecosystems and could pave the way for exciting, new medicinal and genetic innovations.” In this paper I will investigate what preceded the Nagoya Protocol, namely the Convention on Biological Diversity and the Bonn Guidelines, which attempted to establish an international access and benefit sharing regime. I will then identify how successful the Nagoya Protocol is in establishing a binding regime on access and benefit sharing of genetic resources and traditional knowledge, and also identify the areas of bioprospecting where it has failed to make an impact. During the negotiations of the Nagoya Protocol, the New Zealand delegation claimed to have faced challenges because of New Zealand’s lack of an overarching domestic bioprospecting policy framework, and because of uncertainty regarding the timing and outcome of the Wai 262 indigenous flora and fauna and cultural intellectual property inquiry in the Waitangi Tribunal. This paper describes the current state of bioprospecting policy in New Zealand, and discusses the findings of the Wai 262 report, Ko Aotearoa Tenei. Ultimately this paper considers whether New Zealand should sign the Nagoya Protocol, and whether the Waitangi Tribunal’s recommendations in Ko Aotearoa Tenei would be a positive addition to the bioprospecting framework that the Protocol would establish.
